Maharashtra State Road Transport ... vs Laxman Kachru Vairal
2015 Latest Caselaw 608 Bom

                                                                   WP 876.2015  
      
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              IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                         BENCH AT AURANGABAD                                        




                                              
                      
                   WRIT PETITION NO. 876 OF 2015




                                             
                            
    The Maharashtra State Road
    Transport Corporation/MSRTC,
    Division - Ahmednagar,
    District - Ahmednagar, through its




                                       
    Divisional Controller.                           ...Petitioner..
                             Versusig
    Shri. Laxman S/o Kachru Vairal,
    Age - 48 years, Occu - Nil,
                                 
    R/o At post - Takli Khatgaon,
    Tal - Nagar, 
    District - Ahmednagar.              ...Respondent... 
                            
                                                          
      


                              .....
    Shri. Bhausaheb S. Deshmukh, Advocate for petitioner.
   



    Shri. A. A. Khande, Advocate for respondent. 
                              .....
      
                                CORAM: RAVINDRA V. GHUGE, J. 

DATE: 07.12.2015

ORAL JUDGMENT :

1] Rule. Rule made returnable forthwith and heard

finally by the consent of the parties.

2] The petitioner is aggrieved by the judgment and

order dated 15.9.2012 delivered by the Labour Court,

Ahmednagar, by which Complaint (ULP) No.20/2008 filed by

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the respondent challenging his dismissal dated 15.10.2004

had been allowed. The petitioner is also aggrieved by

the judgment and order dated 19.3.2014 delivered by the

Industrial Court by which the Revision (ULP) No.118/2012

preferred by the petitioner has been partly allowed.

3] Shri B.S. Deshmukh, learned Advocate for the

petitioner submits that the respondent was discharging

duties as a Conductor with the petitioner - Corporation.

In his past service from 1988 onwards, he has been

punished on 45 occasions for having committed 45 mis-

conducts.

4] ON 26.11.2000, when the Bus was travelling from

Parner to Wankuta, the Flying Squad carried out a

surprise check of the Bus and found that two passengers

were travelling ticket-less as used tickets were issued

to them. A charge-sheet dated 30.11.2000 was issued to

the respondent. After conducting a domestic inquiry as

per the Discipline and Appeal Rules, the respondent was

finally awarded the punishment of reduction of pay-scale.

5] By order dated 28.9.2001, the punishment of

reduction in pay-scale was implemented. A show cause

notice dated 23.11.2001 was issued by the appellate

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authority purportedly under Rule 9 of the Discipline and

Appeal Rules calling upon the respondent to show cause

why the punishment awarded should not be reviewed and why

he should not be awarded the punishment of dismissal from

service. The respondent promptly replied to the notice

on 26.11.2001.

6] Shri B.S. Deshmukh frankly submits that a notice

of personal hearing was issued and a hearing was arranged

on 22.9.2004, which is almost three years after the

respondent submitted his reply. By order dated

15.10.2004, the order of punishment dated 28.9.2001 was

reviewed and the respondent was awarded the punishment of

dismissal from service.

7] Shri B.S. Deshmukh further submits that the

order of reduction dated 28.9.2001 was then recalled

after one year of the passing of the dismissal order on

9.9.2005.

8] He, therefore, submits that the conclusion of

the Labour Court that the respondent has suffered double

jeopardy as he has already suffered the punishment of

reduction dated 28.9.2001 and after three years, the

order of dismissal is issued without recalling the order

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of reduction, is erroneous. Shri Deshmukh submits that

the said conclusion of the Labour Court is unsustainable

as the petitioner - Corporation has the legal right to

suo moto review its earlier decision.

9] He further submits that the error committed by

the Labour Court has also been committed by the

Industrial Court, which failed to see the perversity in

the judgment of the Labour Court and has upheld the said

judgment. He, therefore, prays that both the impugned

judgments be quashed and set aside and the dismissal of

the respondent dated 15.10.2004 be upheld.

10] Shri A.A. Khande, learned Advocate appearing on

behalf of the respondent - employee, has strenuously

defended the impugned judgments. He does not dispute the

facts as have been recorded here-in-above.

11] He, however, points out from Clause 9 below the

subject "Appeal" as set out in the modified Discipline

and Appeal Rules dated 27.5.2005 that the appellate

authority of the petitioner - Corporation is entitled to

review the order of punishment issued or prescribed by

the disciplinary authority, only within one year. He

submits that the phraseology used in Clause 9 indicates

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that the review can be done within one year. He,

therefore, submits that it does not mean that the review

proceedings should be initiated in one year.

12] Shri B.S. Deshmukh submits that the

interpretation of Clause 9 of the petitioner -

Corporation is that the review procedure has to be set in

motion within one year and it is not incumbent upon the

petitioner - Corporation to complete the exercise of

review within one year.

13] In order to put the controversy as regards Rule

9 to rest, I have considered the phraseology used in

Clause 9, which is in clear and unambiguous terms. It

provides for causing a review of the order of punishment

prescribed by the disciplinary authority, within one

year. The phraseology does not indicate that the

Corporation can set the review proceedings in motion

within one year. Therefore, I have no hesitation in

concluding that the contention of Shri A.A. Khande is

sustainable and the review proceedings have to be

completed within one year.

14] Be that as it may, I am constrained to refer to

the past service record of the respondent while deciding

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as to whether the technical flaws committed by the

petitioner should result in the reinstatement of the

respondent. The respondent joined duties in 1988. By

2001, he had committed in all 46 mis-conducts. He had

been punished for 45 mis-conducts of the nature of

allowing passengers to travel ticket-less or re-issuing

used tickets.

15] It is trite law that such conduct of a Bus

Conductor is to be held to be an act of mis-appropriation

and dishonesty. The 46th mis-conduct is the mis-conduct

at issue.

16] In this backdrop, I had expressed my view to the

learned Advocate for the respondent on 2.12.2015 when

this matter was heard at length. Consequentially, the

respondent has filed an affidavit dated 4.12.2015, which

is tendered across the Bar today. The respondent is also

personally present in the Court and Shri A.A. Khande,

learned Advocate, identifies him. The said affidavit is

taken on record and marked as Exhibit X for

identification.

17] Shri A.A. Khande submits that by virtue of

Exhibit X, the respondent is willing to submit his

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voluntary retirement application alongwith a resignation

to the petitioner - management and the same be considered

as an application for voluntary retirement. Notional

continuity of service be granted so as to enable the

respondent to earn his retiral benefits. Shri A.A.

Khande, however, makes a request that this Court may

consider whether back wages should be granted to the

respondent.

18] Considering the nature of facts as recorded

here-in-above and the nature of the mis-conducts, that

have been committed by the respondent, he deserved the

punishment of dismissal from service, but for the

technical flaws created by the petitioner - management.

Nevertheless, on the point of Clause 9 of the Discipline

and Appeal Rules, the respondent could be said to have

technically succeeded against the petitioner.

19] In this backdrop, I am inclined to accept

Exhibit X and direct the petitioner to allow the

respondent to tender his application for voluntary

retirement alongwith a resignation and by accepting the

said application, the respondent be treated as

voluntarily retired from service with notional continuity

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in service. This would enable the respondent to draw

all retiral and pensionary benefits. However, no back

wages shall be paid to the respondent from the date of

his termination i.e. 15.10.2004.

20] In the light of the above, this petition is

partly allowed. The impugned judgment of the Labour

Court dated 15.9.2012 and the judgment delivered by the

Industrial Court dated 19.3.2014 are quashed and set

aside.

21] The respondent shall tender an application for

voluntary retirement alongwith a resignation within 15

days to the petitioner - competent authority.

Thereafter, the petitioner shall accept the same and

shall retire the respondent from service with effect from

1.1.2016. Notional continuity of service from the date

of termination is granted to the respondent, by which he

would be entitled for retiral and pensionary benefits.

22] Rule is made partly absolute in the above terms.

There shall be no order as to costs.

(RAVINDRA V. GHUGE, J.) ndk/wp.876.2015.doc